{ "id": 4221515, "name": "STATE OF NORTH CAROLINA v. LEO ROMERO", "name_abbreviation": "State v. Romero", "decision_date": "2013-07-16", "docket_number": "No. COA12-1499", "first_page": "348", "last_page": "352", "citations": [ { "type": "official", "cite": "228 N.C. App. 348" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "353 S.E.2d 250", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "252", "parenthetical": "recognizing that \"defendants may not raise an initial objection to a condition of probation... on appeal\"" } ], "opinion_index": 0 }, { "cite": "84 N.C. App. 517", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12168824 ], "year": 1987, "pin_cites": [ { "page": "520", "parenthetical": "recognizing that \"defendants may not raise an initial objection to a condition of probation... on appeal\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/84/0517-01" ] }, { "cite": "282 S.E.2d 436", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "439", "parenthetical": "holding that a defendant seeking to challenge the validity of a probation condition must do so \"no later than the hearing at which his probation is revoked\"" } ], "opinion_index": 0 }, { "cite": "304 N.C. 180", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565555 ], "year": 1981, "pin_cites": [ { "page": "183", "parenthetical": "holding that a defendant seeking to challenge the validity of a probation condition must do so \"no later than the hearing at which his probation is revoked\"" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0180-01" ] }, { "cite": "675 S.E.2d 709", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "711" } ], "opinion_index": 0 }, { "cite": "196 N.C. App. 765", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4166875 ], "year": 2009, "pin_cites": [ { "page": "767" } ], "opinion_index": 0, "case_paths": [ "/nc-app/196/0765-01" ] }, { "cite": "388 S.E.2d 134", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "137" } ], "opinion_index": 0 }, { "cite": "326 N.C. 205", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5307411 ], "year": 1990, "pin_cites": [ { "page": "209" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0205-01" ] }, { "cite": "596 S.E.2d 351", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "353" } ], "opinion_index": 0 }, { "cite": "164 N.C. App. 712", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8900951 ], "year": 2004, "pin_cites": [ { "page": "714" } ], "opinion_index": 0, "case_paths": [ "/nc-app/164/0712-01" ] }, { "cite": "568 S.E.2d 867", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "869" }, { "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "153 N.C. App. 69", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9248676 ], "year": 2002, "pin_cites": [ { "page": "72" } ], "opinion_index": 0, "case_paths": [ "/nc-app/153/0069-01" ] } ], "analysis": { "cardinality": 469, "char_count": 9133, "ocr_confidence": 0.728, "pagerank": { "raw": 6.770845263994211e-08, "percentile": 0.412845497942158 }, "sha256": "a2a769127eb3bf97087782dcf7ad0d238961d32026be08b804d951c6df7a5427", "simhash": "1:8f7bf5e6543dc46d", "word_count": 1479 }, "last_updated": "2023-07-14T22:18:27.138557+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges CALABRIA and ERVIN concur." ], "parties": [ "STATE OF NORTH CAROLINA v. LEO ROMERO" ], "opinions": [ { "text": "DILLON, Judge.\nLeo Romero (Defendant) appeals from the trial court\u2019s orders modifying the terms of his probation and imposing Confinement in Response to Violation (CRV) for a period of 90 days pursuant to N.C. Gen. Stat. \u00a7 15A-1344(d2) (2011). We hold that Defendant has no right to appeal from these orders, and, accordingly, we dismiss Defendant\u2019s appeal for lack of jurisdiction.\nI. Factual & Procedural Background\nOn 23 September 2011, Defendant pled guilty pursuant to apleaagreement to two counts of trafficking in opiates and one count of maintaining a place to keep controlled substances. The court sentenced Defendant to 18 to 22 months imprisonment for the opiate trafficking convictions and to an additional 6 to 8 months imprisonment for the remaining conviction. Both sentences were suspended, however, and Defendant was placed on supervised probation for a period of 24 months, including 6 months of intensive supervision. As part of the intensive supervision, Defendant was required by the Division of Community Corrections to perform 50 hours of community service.\nOn 14 June 2012, Defendant\u2019s probation officer filed reports alleging that Defendant had violated the terms of his probation. Following a hearing on 6 August 2012, the trial comb determined that Defendant had \u201cwillfully and without valid excuse\u201d violated two conditions of his probation; namely, that (1) Defendant had failed to comply with his community service requirement and that (2) Defendant had failed to report to meetings with his probation officer. As a consequence of these violations, the trial court entered orders requiring that Defendant be incarcerated for a period of 90 days. From these orders, Defendant appeals.\nII. Analysis\nThe State has filed a motion to dismiss this appeal, contending that Defendant has no statutory right to appeal from an order modifying the terms of probation and imposing CRV. Defendant counters that the trial court\u2019s orders are final judgments and are thus appealable under N.C. Gen. Stat. \u00a7 7A-27(b) (2011), a provision which permits an appeal \u201cof right\u201d to this Court \u201c[ijrom any final judgment of a superior court.\u201d\n\u201cIn North Carolina, a defendant\u2019s right to appeal in a criminal proceeding is purely a creation of state statute.\u201d State v. Pimental, 153 N.C. App. 69, 72, 568 S.E.2d 867, 869 (2002). N.C. Gen. Stat. \u00a7 15A-1347 (2011) grants a defendant the right to appeal from a determination that he has violated the terms of his probation where either (1) his sentence is activated or (2) special probation is imposed:\nWhen a superior court judge, as a result of a finding of a violation of probation, activates a sentence or imposes special probation, either in the first instance or upon a de novo hearing after appeal from a district court, the defendant may appeal under G.S. 7A-27.\nId. (emphasis added). Construing this provision, this Court has held that a defendant does not have the right to appeal from an order that merely modifies the terms of probation where the \u201c[d]efendant\u2019s sentence was neither activated nor was it modified to \u2018special probation.\u2019 \u201d State v. Edgerson, 164 N.C. App. 712, 714, 596 S.E.2d 351, 353 (2004). The issue presented is whether the trial court\u2019s imposition of CRV pursuant to section 15A-1344(d2) constituted an activation of Defendant\u2019s sentence, thereby triggering a right to appeal under section 15A-1347.\n\u201cThe primary rule of construction of a statute is to ascertain the intent of the legislature and to carry out such intention to the fullest extent.\u201d Burgess v. Your House of Raleigh, Inc., 326 N.C. 205, 209, 388 S.E.2d 134, 137 (1990). \u201c[W]here a statute is ambiguous or unclear as to its meaning, we must interpret the statute to give effect to the legislative intent.\u201d N.C. Dept. of Rev. v. Hudson, 196 N.C. App. 765, 767, 675 S.E.2d 709, 711 (2009).\nSection 15A-1344(d2) was enacted in 2011 as part of the Justice Reinvestment Act. Under this Act, for probation violations other than those in which a defendant commits a criminal offense or \u201cabscond[s], by willfully avoiding supervision or by willfully making [his] whereabouts unknown to the supervising probation officer[,]\u201d the trial court may not revoke probation, but instead may impose CRV for a period of 90 days for a felony offender or \u201cup to 90 days\u201d for a misdemeanor offender. Id.-, N.C. Gen. Stat. \u00a7 15A-1343(b)(1),(3a) (2011). If a defendant has already received two CRV\u2019s, then the trial court may revoke probation. N.C. Gen. Stat. \u00a7 15A-1344(d2). Notably, however, the Act does not explicitly provide for a right to appeal from an order imposing CRV. We must, therefore, determine whether our General Assembly intended for the imposition of CRV to be appealable under section 15A-1347.\nSection 15A-1347 is entitled \u201cAppeal from revocation of probation or imposition of special probation upon violation.\u201d This plain language. indicates that the General Assembly did not intend to provide for a right to appeal under section 15A-1347 upon the imposition of confinement unless the confinement was an activation of the defendant\u2019s sentence resulting from a \u201crevocation of probation\u201d or the confinement was part of the imposition of special probation. The mandate set forth in section 15A-1344(d2) that a trial court is not empowered to revoke probation - with limited exceptions not applicable here - until after a defendant has received two CRV\u2019s plainly indicates that CRV in and of itself is not to be considered a revocation of probation.\nFurther, we do not believe that the General Assembly intended that an imposition of CRV be considered the imposition of special probation. The language which provides for the imposition of CRV is set forth in a separate subsection from the language which provides for the imposition of special probation. Specifically, the language providing for the imposition of CRV is found in subsection (d2) of N.C. Gen. Stat. \u00a7 15A-1344 with the heading \u201cConfinement in Response for Violation,\u201d whereas the language providing for the imposition of special probation is found in subsection (e) with the heading \u201cSpecial Probation in Response to Violation.\u201d Accordingly, we hold that Defendant does not have a statutory right to appeal from the trial court\u2019s imposition of CRV, and the instant appeal must be dismissed.\nAdditionally, we note that Defendant puts forth an argument, which, in substance, contends that the community service condition of his probation was never properly imposed and, therefore, could not have served as a basis for the court\u2019s finding that he had violated his probation. Our review of the record, however, reveals that Defendant did not contest the validity of the community service requirement at any point during the revocation hearing. Defendant has, therefore, waived this challenge. State v. Cooper, 304 N.C. 180, 183, 282 S.E.2d 436, 439 (1981) (holding that a defendant seeking to challenge the validity of a probation condition must do so \u201cno later than the hearing at which his probation is revoked\u201d); State v. Tozzi, 84 N.C. App. 517, 520, 353 S.E.2d 250, 252 (1987) (recognizing that \u201cdefendants may not raise an initial objection to a condition of probation... on appeal\u201d).\nAccordingly, this Court lacks jurisdiction over Defendant\u2019s appeal.\nDISMISSED.\nJudges CALABRIA and ERVIN concur.\n. We note that N.C. Gen. Stat. \u00a7 15A-1344(d2) provides, in part, that \u201c[i]f the time remaining on the defendant\u2019s maximum imposed sentence is less than 90 days, then the term of confinement is for the remaining period of the sentence.\u201d Citing this language, Defendant points out that if he had had less than 90 days remaining on his sentence at the time of his confinement, then the CRV would have constituted a defacto revocation of his probation, thereby \u201cactivating\u201d his sentence and triggering a right to appeal under N.C. Gen. Stat. \u00a7 15A-1347. We decline to express any opinion on the issue of whether CRV under such a circumstance would constitute a defacto revocation, as the time remaining on Defendant\u2019s maximum imposed sentence far exceeds 90 days.", "type": "majority", "author": "DILLON, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Miche\u00e1l E. Butler, for the State.", "Appellate Defender Staples Hughes, by Assistant Appellate Defenders John F. Carella and Benjamin Dowling-Sendor, for Defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. LEO ROMERO\nNo. COA12-1499\nFiled 16 July 2013\nAppeal and Error \u2014 preservation of issues \u2014 confinement in response to violation \u2014 no statutory right of appeal \u2014 failure to raise issue at revocation hearing\nDefendant\u2019s appeal in a drugs case from the trial court\u2019s orders modifying the terms of his probation and imposing confinement in response to violation (CRV) for a period of 90 days was dismissed. Defendant did not have a statutory right to appeal from the trial court\u2019s imposition of CRV. Further, defendant waived the issue of the validity of the community service requirement since he failed to contest it at any point during the revocation hearing.\nAppeal by Defendant from orders entered 13 August 2012 by Judge Thomas H. Lock in Johnston County Superior Court. Heard in the Court of Appeals 10 April 2013.\nAttorney General Roy Cooper, by Assistant Attorney General Miche\u00e1l E. Butler, for the State.\nAppellate Defender Staples Hughes, by Assistant Appellate Defenders John F. Carella and Benjamin Dowling-Sendor, for Defendant." }, "file_name": "0348-01", "first_page_order": 358, "last_page_order": 362 }